Re: Taxing Questions -- Sperling’s Right, Ryan’s Wrong

by Andrew C. McCarthy

[LINKS HAVE BEEN FIXED]

After reading K-Lo’s post about Rep. Paul Ryan’s response to White House adviser Gene Sperling, I took a look at the Bipartisan Agreement To Add $7 Trillion To The Deficit Act of 2011 — er, I mean the Budget Control (Ahem) Act of 2011 — to try to figure out whether Ryan or Sperling is correct. The question is whether, as Sperling claims and Ryan disputes, the new law invites the constitutionally dubious Super Committee to request CBO estimates based on “alternative baselines” (i.e., baselines rooted in something other than existing law) for the purpose of certifying what both Ryan and the Obama administration persist in describing as the Super Committee’s achievement of “deficit reduction” — but what is actually the Super Committee’s mandate to add at least $7 trillion to the deficit (it’s a “reduction” only in the sense that President Obama would add about $10 trillion).

Mr. Sperling’s got the better of the argument.

Like most claims by Republican leadership during the debt ceiling debate, Rep. Ryan’s need to be parsed carefully. If a non-lawyer reads his response to Sperling (put out by House Speaker John Boehner’s office), he would think that the new law explicitly directs the Super Committee to use CBO projections to estimate how its proposals “will affect the levels of . . . budget authority, budget outlays, revenues, or tax expenditures under existing law.” (Emphasis in Rep. Ryan’s response.) But — shock, shock! — that is not what the new law says.

In fact, the section of the new law that Ryan cites — Section 405 — does not even exist. That’s an excusable error — the sort of thing that’s bound to happen when you don’t post proposed legislation three days in advance of its being voted on, as the GOP pledged to do. But that’s another story. 

Rep. Ryan appears to be referring instead to Section 401, entitled “Establishment of Joint Select Committee.” In subsection 401(b)(3)(B)(i)(I), the Super Committee is directed to vote on “a report that contains a detailed statement of the findings, conclusions, and recommendations of the joint committee and the estimate of the Congressional Budget Office required by paragraph (5)(D)(ii)” (emphasis added). Ryan’s response to Sperling cited subsection 405(b)(5)(D)(ii), so I am assuming that is the error — i.e., Ryan meant to cite subsection 401(b)(5)(D)(ii).

When you scroll down to that subsection (page 59), you’ll find that the phrase quoted in Ryan’s response to Sperling does not appear — not even close. Instead, the subsection states: “. . . (D) VOTING . . . (ii) CONGRESSIONAL BUDGET OFFICE ESTIMATES. — The Congressional Budget Office shall provide estimates of the legislation . . . in accordance with sections 308(a) and 201(f) of the Congressional Budget Act of 1974[.]“ 

I scratched my head and said to myself, “Self, Ryan’s not the kind of guy who would make things up out of thin air, right?” So I went back and looked at his response to Sperling more carefully (i.e., wearing my lawyer hat rather than my normal-person hat). And sure enough, Ryan writes, in lawyerly fashion, that the new law “explicitly instructs the Committee to use CBO projections and explicitly references current law requirements[.]” (My italics.) Ahh . . . “references current law requirements” — not “mandates current law requirements.” Let’s parse that. Sperling does not dispute that the new law “explicitly instructs the Committee to use CBO projections” — and Section 401 clearly calls for that. What Sperling is saying is that the new law does not preclude the Super Committee from asking for CBO projections premised on “alternative baselines” not rooted in current law. Section 401 does not prove him wrong.

To be blunt, the new law does not say what Ryan claims it says. Ryan hints to readers that he is quoting from the new law, but he is really just arguing for an interpretation of the new law based on an inference from yet another law — namely, Section 308(a) of the Congressional Budget Act of 1974. He is saying that application of this 37-year-old statute mandates use of existing law in the statute enacted today.

So I looked up Section 308 of the Congressional Budget Act. It is there, finally, that you find the phrase excerpted in Rep. Ryan’s response to Sperling. Under Section 308 of the 1974 law, certain committee reports on budget legislation are supposed to set forth a statement “containing a projection by the Congressional Budget Office of how such measure will affect the levels of such budget authority, budget outlays, revenues, or tax expenditures under existing law for such fiscal year (or fiscal years) and each of the four ensuing fiscal years, if timely submitted before such report is filed[.]“

But read carefully, Section 308 poses several problems for Rep. Ryan. First, the statute does not appear to apply to the Super Committee at all. Section 308 expressly states that its requirements apply only to “a committee of either House” which is reporting “to its House.” The Super Committee is not a committee of either House — it is a joint committee of both Houses (the “Joint Select Committee on Deficit Reduction”) — and it is to make its report to both Houses. Indeed, the whole point of creating a Super Committee is that normal legislative laws and rules are not supposed to apply. As a matter of fact, under the new law, the committees of the two houses provide recommendations to the Super Committee, not the other way around. The objective of the new law is to enable the Super Committee’s decisions to be fast-tracked — unencumbered by any of those icky intrusions like statutes, rules, and political debate. 

Second, even if we assume for argument’s sake that Section 308(a) does apply, by its own terms no CBO projection is required unless it is “timely submitted” to a committee before its report is filed. Under the new law, the Super Committee has to vote on its report by November 23, 2011. Yes, the report is supposed to have CBO estimates, but Section 308 would arguably permit proceeding without them if the Super Committee did not get the report to CBO sufficiently in advance for CBO to provide a timely response. That’s admittedly unlikely — the obvious intention of the new law is to have CBO projections. But one could easily see grist for a Democrat claim that CBO projections are not absolutely required. 

Third, and more to the point, there is nothing in Section 308 that bars the Super Committee from asking for, or the CBO from supplying, projections based on alternative baselines. I’m confident Ryan is right in saying that the Super Committee can insist on projections based on current law. But Sperling’s claim that the Super Committee is authorized to ask for CBO projections based on alternative baselines is not precluded by the statutes Ryan cites. Moreover, even if Ryan were right on the law (and, again, I don’t think he is), who is going to enforce his view? No court is going to get involved in this. If Democrats on the Committee insist on projections based on alternative baselines, CBO is going to comply — and no one is going to stop CBO from doing so. 

Remember the Boehner plan of only a week ago? Remember how it was not premised on current law? It was based on [drumroll . . .] an alternative baseline — pursuant to an agreement between Boehner and the Democrats. And what happened? The CBO did not squawk and point to Section 308. It dutifully provided projections based on both current law and, as Boehner himself separately requested, the non-current-law baseline he and Democrats had agreed to use.

This caused no small amount of embarrassment when Boehner’s original claim to cut $1.2 trillion from the projected deficit (i.e., to add about $8.2 trillion to the current deficit) over ten years computed to only $850 billion in “cuts.” But for present purposes, the point is that there were no GOP press releases posted on the speaker’s website in which leading Republicans railed about the speaker’s failure to adhere to Section 308 of the Congressional Budget Act of 1974. Evidently, Rep. Ryan didn’t see a problem with any of this.

Now, however, it is the Obama administration that, quite predictably, wants to do what Speaker Boehner did. Ryan’s protest rings hollow. Look, Republicans agreed to this Super Committee — a pig in a poke as to which we were not told who would be appointed before awesome powers were conferred on it. If Republicans wanted the Super Committee to be bound exclusively by CBO projections of current law, they could have insisted that this condition be written explicitly and unambiguously into the new law — as explicitly and unambiguously as it is written in Rep. Ryan’s response to Mr. Sperling. They didn’t.

But hey, after all, as Charles Krauthammer says, Republicans only control one-half of one-third of the government. It’s unreasonable to expect that they’d fight for things like a term in the we-have-to-pass-it-to-see-what’s-in-it legislation that would foreclose the Left from orchestrating sneaky tax hikes. Haven’t you heard? We were lucky to get what we got, for which 2.4 trillion thanks are owed to the unwavering leadership of Speaker Boehner and Minority Leader McConnell. This is a tremendous victory for the Tea Party! Sure, President Obama may have gotten his credit line extended past election day, but we’ve changed the conversation!